Akaka Bill Debate

Proposed by U.S. Senator Daniel Akaka (D-HI), the Akaka Bill, also known as the Native Hawaiian Government Reorganization Act of 2007, seeks to establish a process for Native Hawaiians to gain federal recognition similar to the recognition that some Native American tribes currently possess.

A panel of experts including President & General Counsel at the Center for Equal Opportunity, Roger Clegg, University of Hawaii Law School Professor, Jon M. Van Dyke, San Diego law professor Gail Heriot, and Professor of Ethnic Studies at the University of Hawaii-Manoa, Davianna McGregor comment on the legal and policy issues raised by this measure.

Roger Clegg: The Native Hawaiian Government Reorganization Act of 2007--a.k.a. the Akaka bill--is not the easiest 22 pages of prose that you'll ever read, but I think I can boil it down to this:

The bill will use a one-drop rule to define membership in an ethnic group, namely Native Hawaiians, whom it will then allow to organize themselves into a governmental entity that can claim a "special political and legal relationship" with the U.S. government of "the type and nature (that the U.S. government) ... has with the several federally recognized Indian tribes."

Members in this group will be made separate and distinct from the rest of the people in Hawaii, will be able to claim preferences more easily than other racial and ethnic groups, and will be able to claim special economic and political power and authority in Hawaii.

I don't like this bill, and the objections to it fall into two basic categories: first that it is unconstitutional; and, second, that even if it were constitutional, it would be a bad idea.

Although the bill itself can be hard to follow, the problems with it are straightforward. Since this I imagine that this is being read mostly by lawyers, let me talk about the constitutional problems first.

The Equal Protection Clause of the Fourteenth Amendment makes it illegal for any state to "deny to any person within its jurisdiction the equal protection of the laws."

The Supreme Court has ruled that the Due Process Clause of the Fifth Amendment makes it illegal for the federal government to deny equal protection as well. The definition of "equal protection" can be complicated, but one thing that it definitely applies to is treating people differently because of their race or ethnicity. The Supreme Court, in its 2000 ruling in Rice v. Cayetano, ruled explicitly that Native Hawaiians are an ethnic group, and that it is illegal to give anyone preferential treatment on account their membership in that group. Putting all this together means that Congress cannot pass a law that gives Native Hawaiians the special right to organize into a separate group that can claim, in turn, still more special rights. It's as simple as that.

I look forward to hearing how Congress's power to regulate commerce with the Indian tribes trumps all this, and to how, constitutional problems aside, the principle of E pluribus unum is served by this balkanizing legislation.

Jon M. Van Dyke: The Akaka Bill is consistent with American political tradition and is constitutional. The federal government is authorized to establish preferential and separate programs for native peoples because of the “political” relationship that exists between the U.S. government and its native peoples, based on the pre-existing sovereignty of native peoples, rather than any “racial” classification.

For most of the first 150 years of the nation’s history, the United States brutally mistreated the natives living within its borders, taking their land, forcefully relocating many groups, killing many natives in battles and through mistreatment and neglect, and systematically trying to destroy their unique culture. Native Hawaiians had a different, but similarly tragic, relationship with the United States government.

Despite several treaties pledging friendship and establishing commercial relationships between the United States and the Kingdom of Hawaii, U.S. military troops and diplomats gave crucial support to the efforts of Western settlers living in Hawaii in 1893 to overthrow the Kingdom. These U.S. officials and troops engaged in activities that were denounced by President Grover Cleveland in 1893 and which the federal government has more recently found to be morally wrong and illegal. In 1898, a mere five years after the overthrow, despite the overwhelming opposition of the Native Hawaiian people and many other residents of Hawaii, the United States annexed the islands, using the unorthodox technique of a joint resolution because two-thirds of the members of the U.S. Senate would not support a treaty of annexation.

Through this maneuver, the United States took control of 1.8 million acres of land that had been controlled by the Kingdom, and did so without the consent of and without any compensation to the Native Hawaiian people. When Hawaii became a U.S. territory, the use of the Hawaiian language was systematically suppressed, and school teachers even scolded parents for speaking Hawaiian to their children in their own homes. Congress established the Hawaiian Home Lands Program in 1921, which was important because it recognized the status of Native Hawaiians as native peoples under U.S. law, but until recent years this program has been chronically underfunded and mismanaged. Congress again recognized the special relationship between the United States and Native Hawaiians in the 1959 law admitting Hawaii as the 50th state, and required the new State of Hawaii to administer the Hawaiian Home Lands Program and to utilize revenues from the lands transferred to the State “for the betterment of the conditions of native Hawaiians.”

In 1993, Congress formally apologized to the Native Hawaiian people for the U.S. participation in the 1893 overthrow, which it characterized as “illegal” and a violation of “international law.” This enactment instructed the Executive Branch to commence a process of “reconciliation.” The President signed this legislation, and initiated efforts by the Justice and Interior Departments to establish a procedure to provide redress for the injuries imposed on Native Hawaiians. An important step in this process was the creation by Congress earlier this year of the Office of Native Hawaiian Relations in the Department of Interior.

The enactment of the Akaka Bill would be an important next step. It would establish a process for reestablishing a Native Hawaiian governmental entity, which would receive formal federal recognition and would begin immediately to redefine the relationship between the United States and Native Hawaiians and to negotiate for the return of land and resources to the Native Hawaiian people. Such a process would be very much in the American tradition, because it would recognize an autonomous native nation similar to the more than 560 native nations, tribes, villages, and communities in the 48 contiguous states and Alaska.

It is a profound part of the United States’ national tradition to acknowledge the mistakes it has made in the past, to act responsibly to compensate the victims, and to reestablish an honorable and dignified relationship with them. The compensation provided to the Japanese-Americans interned during World War II provides an important example of our recognizing and redressing such a wrong. During the past half-century, the United States has worked steadily to improve the conditions of its native peoples, and many native groups are now prospering economically and reinvigorating their culture. Addressing and resolving the legitimate claims of the Native Hawaiian people remains as unfinished business on our national agenda.

The enactment of the Akaka Bill is long overdue, and it will begin the next phase of the relationship between the United States and Native Hawaiians, a phase that should allow Native Hawaiians to govern themselves once again and to regain control over their lands and resources.

Roger Clegg: Much of Jon’s reply is an account—which many would dispute—of historical wrongs suffered by Native Hawaiians. As a constitutional matter, in all events, it is beside the point: African Americans were, of course, at least as badly treated in American history, but the Supreme Court has, quite rightly, ruled that general claims of historical discrimination do not justify racial preferences for them.

I would also point out that there are relatively few “pure” Native Hawaiians, which means that those who can join in forming the new Indian tribe that the Akaka bill contemplates will mostly be people who can claim both “victim” and “oppressor” ancestors.

Later on we can talk more about why, as a policy matter, the divisive and unfair ethnic discrimination embodied by the Akaka bill ought to be rejected. But for now, I’d like to continue to focus on why the bill is unconstitutional.

The only part of Jon’s reply that comes close to addressing the constitutional problems I identified is where he asserts that there is no equal protection problem “because of the ‘political’ relationship that exists between the U.S. government and its native peoples, based on the pre-existing sovereignty of native peoples.”

The trouble is that there is no political relationship between Native Hawaiians as defined in the Akaka bill and the U.S. government now, nor was there ever in the past. The Native Hawaiian ethnic group defined in the Akaka bill was never a political entity. The Hawaiian islands were not united until after the Europeans and other non-Hawaiians had arrived, and when the islands finally were united, these other groups were included in the government.

It would be as if Congress were to declare that everyone with a drop of blood from any American Indian ancestor who had once lived in Texas could now participate in the formation of a brand-new Indian tribe, which, as Jon puts it, “would begin immediately to redefine the relationship between the United States and Native [Texans] and to negotiate for the return of land and resources to the Native [Texan] people”--this despite the fact that there was never a unified Texas tribe and that members of the new tribe would be scattered all over the country, many with only some tribal blood and/or no ties to Texas at all.

An entity must at some point have been political rather than racial if it is to be considered political rather than racial, and that has never been the case for Native Hawaiians as defined in the Akaka bill. There is no “’political’ relationship that exists” (to quote Jon) and so he is right to have conceded that the bill would “redefine the relationship” (to quote him again). But this concession means that the bill is unconstitutional.

Jon M. Van Dyke: The United States has historically grouped together native people into entities usually called tribes for the purpose of establishing relationships with them. The Alaska Native Claims Settlement Act of 1971 is an important recent example. Congress has recognized the political relationship with Native Hawaiians on numerous occasions in a wide variety of legislation. The Hawaiian Homes Commission Act passed in 1921, the Admission Act in 1959, and the Apology Resolution in 1993 are prominent on that list, but there are many other examples. The Hawaiians controlled an independent country recognized by many countries around the world until their Kingdom was illegally overthrown by Westerners who were provided with essential military and diplomatic support of the United States. In the Apology Resolution, Congress recognized that US participation in the overthrow was illegal and a violation of international law and called for reconciliation between the United States and Native Hawaiians.

The Akaka Bill would promote that process. Justice demands no less.

Gail Heriot: It’s important to emphasize the reason some people regard a kind of tribal status for ethnic Hawaiians as desirable: In an age in which racial and ethnic entitlements are an unfortunate feature of the political landscape all over the country, Hawaii is in a league by itself. The State’s Office of Hawaiian Affairs administers a huge public trust--worth billions--which in theory benefits all Hawaiians, but for reasons that are both historical and political, actually provides an extraordinary array of benefits exclusively for ethnic Hawaiians. Among other things, ethnic Hawaiians may be eligible for special home loans, business loans, housing and educational programs.

The problem for supporters of special benefits came in 2000, with the Supreme Court case of Rice v. Cayetano. Unsurprisingly, the Court ruled that the Fifteenth Amendment, which prohibits States from discriminating on the basis of race in voting rights, applied to Hawaii just as it does to every other state. Hawaii thus could not prohibit non-ethnic Hawaiians from voting in state elections for OHA trustees. That ruling caused an uproar. If the Fifteenth Amendment prohibits Hawaii from limiting voting rights to ethnic Hawaiians, the Fourteenth Amendment’s Equal Protection Clause and other civil rights laws might also prohibit all or part of the OHA’s massive system of exclusive benefits.

That’s where the tribal idea comes in. States cannot discriminate on the basis of race except in extraordinary cases. But thet can discriminate on the basis of tribal membership. See Morton v. Mancari. If ethnic Hawaiians can be morphed into a tribal entity, their exclusive benefits can be preserved or so its advocates hope. They will have achieved by indirection what they probably cannot achieve directly.

There are many reasons why this is a bad idea--including a strong likelihood that the bill is simply unconstitutional. If the State of Hawaii cannot confer preferential benefits on its citizens based on race, it cannot confer tribal status, which is itself a benefit, on a group based on race.

But perhaps the most important reason to oppose the Akaka bill is the disturbing precedent it sets. The United States has long recognized the sovereign status of Indian tribes. But until now, it has done so only with groups that have a long, continuous history of self-governance. Tribes were treated as semi-autonomous entities, because they were; they had never been brought under the full control of both federal and state authority. Federal policy towards them was simply a bow to reality.

By retroactively creating a tribe out of individuals who are already full citizens of both the United States and the State of Hawaii, and who do not have a continuous history of separate self-governance, the Akaka bill will be breaking new ground. If ethnic Hawaiians can be an tribe, why not Chicanos in the Southwest? Cajuns in Louisiana? Religious groups--like Orthodox Jews in New York or the Amish in Pennsylvania--may be particularly interested in gaining tribal status, since doing so will arguably allow them to take on governmental authority without being subject to Constitutional prohibitions on the establishment of religion. Who will say no to these (and other) groups? Where will the political will come from?

By the way, don’t think for a minute that this is a small matter. If all ethnic Hawaiians are organized into a tribal unit, it will be larger than any tribe in America-–400,000 or so. Only about half of them will live in Hawaii. And groups that confer benefits on their members tend to get larger as more and more people seek to define themselves "in."

Roger Clegg: Right you are, Gail. A big reason the supporters of the Akaka bill want it passed is that they know, without it, the preferential programs already in place will be constitutionally vulnerable. Citing to other unconstitutional programs, Jon, is hardly a persuasive way to support the enactment of yet another one.

So let's move on to the broader policy argument, and Jon's assertion that "Justice demands no less" than the enactment of this divisive (indeed balkanizing) and unfair (indeed racially discriminatory) bill.

The United States is a multiracial, multiethnic society. It always has been, and indeed its multiethnicity increases every year. Hawaii also has this multiracial and multiethnic description, if not more so.

In such a society, it is simply untenable to have a legal regime where some of us are singled out for special treatment, whether that special treatment is better or worse than everyone else, because of skin color or what country our ancestors came from or when our ancestors came here.

It would be especially dangerous to pick a large group out of that population--and Gail is right that this is a large group in Hawaii--and not only allow its members special treatment, but give them a separate government and rights. What could be more divisive than that?

Let's face it: The reason that preferences for some groups have a visceral appeal is because of the fact that some groups were better treated and others worse treated in our history, and so superficially it seems fair to "make up" for this past discrimination by discriminating in the other direction, especially if the group continues to lag in some way.

Jon, even if we accept your history--and many do not--you would have to admit that similar or worse wrongs have been suffered by African Americans, and the Irish, and the Jews, and the Japanese, and the Chinese, and so forth. All of them can claim historical wrongs--and also to have a cultural heritage worthy of continuation, by the way.

But if you start fudging the laws to give groups that have suffered historical wrongs a mechanism to claim special treatment--call it tribal status, call it reparations, call it whatever you like--then, as Gail asks, where do you stop?

You have simply made it inevitable that there will be more division, more resentment, more stigmatization. And, of course, these wrongs are always far enough in the past that it is impossible to say with certainty that this person over here today is entitled to be given something from that person over there today, since they may have little in common with the original victim and wrongdoer except their respective skin colors.

Jon M. Van Dyke: The United States is a pluralistic multi-ethnic society, and most immigrant groups came to our country understanding that they would be participating in such a society, and, at some level or other, they made a choice to do so. But native people never made that choice. They were simply here when the rest of us came.

Also, the rest of us have some "mother culture" somewhere else where we can look to for the survival and development of our ancestral culture -- Japanese-Americans have Japan, Irish-Americans have Ireland, etc. But native people have no other such place. Unless their culture is given some protection and opportunity to develop in its own way here in the United States, it will disappear altogether, and we will all be the losers whenever any unique culture disappears.

Those reasons have long justified the different treatment that we give to native people, whereby our constitutional structure permits separate and preferential programs for native groups that would not be permitted for other ethnic groups.

Some argue that Native Hawaiians should not be classified as "natives" because they have not had a continuous governmental relationship with the United States. Well, duh, why haven't they? Because the United States engineered an overthrow of the Kingdom of Hawaii and then annexed these wonderful islands, without the consent of or compensation to the Native Hawaiian people (to paraphrase the language in the 1993 Apology Resolution). Certainly it cannot plausibly be argued with a straight face that Native Hawaiians should be denied a status they would otherwise be entitled to under US law because of illegal action that US government officials engaged in (and for which our Congress has apologized). That position simply does not survive the laugh test.

And there is no other argument that can be presented that would differentiate between Native Hawaiians and other Native Americans, including of course the Alaskan Natives. They all had unfortunate relationships with the United States, whereby they lost land and were denied rights to their resources. All faced systematic destruction of their unique cultures. In recent years, especially since the formal position taken by the United States in 1970 recognizing the right of native people to a separate and distinct status under US law, many native people have had some of their lands restored, and many are doing quite well now. The comprehensive statute passed in 1971 for the Alaska Natives is not perfect, but it certainly recognizes their separate and unique status and allows them to control valuable land and resources. For reasons I have never understood, Native Hawaiians are now the only substantial native people that have never had access to a claims procedure and have never had any settlement package with the United States government. They are certainly just as native as other Native Americans and Alaska Natives. It is time to begin the process of settling their very justified claims. The enactment of the Akaka Bill would begin that process.

Davianna McGregor: Native Hawaiians are a sovereign indigenous people not a racial group.

Hawai'i is the most isolated land mass in the world. Throughout the first period of settlement of the Hawaiian Islands, up through 600 A.D., several generations were born in Hawai'i, descended from early
Polynesian ancestors.

By 600 A.D. scholars acknowledged that, given a long period of separation and isolation, there was a unique and distinct Hawaiian people, language, and culture indigenous ONLY to the Hawaiian
Islands. Generations of indigenous Hawaiian 'ohana (extended families) exercised sovereign control throughout the islands and developed a highly organized, self-sufficient communal social system.

From 1100 A.D. and through 1400A.D., Hawaiian society continued to expand and develop. Irrigation networks and fishpond aquaculture supported a growing population. Deliberate voyages between Hawai'i and Tahiti introduced a new religious system. Both developments led to the emergence of ruling chiefs who exercised the sovereignty of the Native Hawaiians through governance over a stratified social system.

Between 1400 and 1650 the ruling chiefs vied with each other for political control over whole islands and groups of islands. By the end of this period, the sovereignty of the Native Hawaiian people was exercised by individual ruling chiefs who governed internal island kingdoms - Kaua'i and Ni'ihau; O'ahu; Maui, Moloka'i, Lana'i and Kaho'olawe; Hawai'i Island. These chiefs vied with each other for paramountcy over all of the islands.

Through trade, beginning in 1778, Western military technology changed the balance of power among the chiefs. By 1795, King Kamehameha I controlled all of the Hawaiian islands except Kaua'I and Ni'ihau. By 1810, King Kamehameha established a central government which held the sovereignty of the indigenous Hawaiian people over the entire island, in trust.

U.S. naval forces overthrew the Hawaiian monarchy on January 17, 1893. This action suppressed the self-governance of the Hawaiian people. However, the sovereignty and right of the Native Hawaiian people to self-governance is inherent, and while it is suppressed, cannot be extinguished.

Beginning in 1906 and through 1998 the U.S. Congress effectively recognized a trust relationship with the Native Hawaiian people through the enactment of 183 federal laws which explicitly included Native Hawaiians in the class of Native Americans.

The 1993 Apology Law, passed by the U.S. Congress and signed by then President Clinton, acknowledged the inherent sovereignty of the Native Hawaiian people and right of self-governance. As Professor Van Dyke pointed out, the Akaka Bill seeks to redress and provide for reconciliation between the United States and Native Hawaiians. It will not create, retroactively a new tribe of Native Hawaiians.

It will formalize the recognition of Native Hawaiians as an indigenous people with whom the U.S. Congress has established a trust relationship throughout the twentieth century.

Gail Heriot: Ms. McGregor begins her most recent statement by stating, "Native Hawaiians are as sovereign indigenous people and not a racial group." If that were so, they wouldn't need the Akaka bill, which is all about organizing such a group (at taxpayer expense I might add). Members of traditional Indian tribes do not depend upon the United States government to tell them who is in their tribe; they know already. Similarly, they don't depend on the United States government to provide an opportunity for them to designate their leaders. They already have leaders and institutions. There can be no greater proof that ethnic Hawaiians do not currently constitute a sovereign group than the Akaka bill itself. That's what makes the Akaka bill new and different, and to my mind at least, that's what makes it a dangerous precedent.

Indeed, the Supreme Court has already recognized this in Rice v. Cayetano. There, too, it was argued that ethnic Hawaiians were not a racial group but rather a tribal group. The Supreme Court would have none of it and rightly so. It clearly held that ethnic Hawaiians are a racial group for the purposes of the Fifteenth Amendment and would surely hold that they are a racial group for the purposes of the Fourteenth Amendment as well.

The purpose of the Akaka bill is to transform ethnic Hawaiians from a racial group to a semi-sovereign tribal group, so that in the future special benefits that are given to ethnic Hawaiians will not be judged by strict scrutiny. But the act of transforming that group is an act that is performed on a racial group and hence the "benefit" of being a tribal group and any legal advantage that might offer must itself be subject to strict scrutiny.

I believe that it was Mr. Van Dyke who argued that allowing ethnic Hawaiians to opt out of the Hawaiian mainstream by organizing into an Indian tribe will not set a dangerous precedent because the other groups who might otherwise be interested in tribal status came to America with the understanding that they would be a part of a multi-ethnic nation. But that is simply false. Tejanos in Texas are in much the same position as ethnic Hawaiians. So are Cajuns in Louisiana. The United States came to them, not vice versa.

Indeed, many groups have a stronger claim to wanting to be left alone than do ethnic Hawaiians. Today's Amish are mainly descended from certain groups of the so-called Pennsylvania Dutch, who came here in the 18th century precisely because they wanted to alone. There is no evidence I know of that they supported or participated in the American Revolution or supported the 1787 Constitution. They were simply absorbed into Commonwealth of Pennsylvania and with it into the United States of America. In contrast, ethnic Hawaiians overwhelmingly supported statehood in 1959. Indeed, there was dancing in the streets. If they can now by-pass the Fourteenth Amendment's prohibition on race discrimination by the clever trick of having themselves declared a tribal group, who is going to prevent other groups from claiming the same privilege?

Davianna McGregor: The focus of this debate is the status of sovereign Native Hawaiian people, not that of the racial, ethnic or cultural groups in the U.S. Each racial group, ethnic group and cultural group has its distinct historical social and political experience and relation to the U.S. government which needs to be recognized appropriately and not trivialized with superficial comparisons.

At issue is U.S. policy toward the Native Hawaiian people.

The U.S. Congress explicitly established a trust relationship with Native Hawaiians when it passed the Hawaiian Homes Commission Act in 1921. Prominent in the findings of the committee was a quote of Secretary of Interior John Lane:

“One thing that impressed me there was the fact that the natives of the islands, who are our wards, I should say, and for whom in a sense we are trustees, are falling off rapidly in numbers and many of them are in poverty.”

The committee also cited a brief of the solicitor of the Department of Interior which address the constitutional issue:

“Would an act of Congress setting apart a limited area of the public lands of the Territory of Hawaii for lease to and occupation by native Hawaiians be unconstitutional? It would not. There are numerous congressional precedents for such action. The act of Congress approved February 8, 1887, as amended by the act of February 28, 1891 (26 Stat., 794), authorizes public lands which have been set apart as Indian reservations by order of the President to be . . . allotted in areas of 160 acres."

Although the U.S. Congress terminated federal services to Native American Indian tribes from 1954 under the Termination Act through the passage of the Indian Civil Rights Act of 1968, the 1959 Admission Act, mandated the State of Hawai’i, as a compact with the U.S. government, to administer the Hawaiian Homes Commission Act. The Admission Act also mandated the State of Hawai’i to administer a ceded public lands trust, in part for the betterment of the conditions of Native Hawaiians.

After 1959, Congress enacted over 100 pieces of legislation which addressed the special needs of Native Hawaiians ranging from healthcare and education, to economic development and cultural and natural resource preservation. These laws culminated with the Apology Law on November 23, 1993 which directly acknowledged the inherent sovereignty of Native Hawaiians at the time of the overthrow of the Kingdom of Hawai’i.

Despite this Congressional record, the U.S. Supreme Court in the 2000 Rice v. Cayetano ruling stated, “It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes. Compare Van Dyke, the Political Status of the Hawaiian People, 17 Yale L. & Pol’y Rev. 95 (1998), with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996). We can stay far off that difficult terrain however.”

The Akaka Bill will reaffirm the policy of the U.S. Congress in answer to the U.S. Supreme Court.

Jon M. Van Dyke: I feel like we have reached gridlock at this point, and will have to simply agree to disagree, because no further progress seems to be possible. Mr. Clegg and Professor Heriot seem to be in denial about the special status that native people have under US and international law. The US Constitution refers to native people several times and makes it clear that they have a separate and distinct status under US law. Indians were recognized as having a separate legal status in Article I, Section 2, para. 3 (untaxed Indians not included in count to determine apportionment of U.S. House of Representatives) and Article I, Section 8, clause 3 (Indian Commerce Clause). Indians were not deemed to be citizens of the United States nor were they eligible to become naturalized until much later. The United States formally affirmed the legitimacy of native autonomy in President Nixon’s Special Message to Congress of July 8, 1970.

The Supreme Court has repeatedly recognized the right of the Congress to establish or adjust the political relationship between the United States and native groups, most recently in United States v. Lara, 541 U.S. 193, 203-04 (2004), where the Court explained: The political branches, drawing upon analogous constitutional authority, have made adjustments to the autonomous status of other such dependent entities-sometimes making far more radical adjustments than those at issue here. See, e.g., Hawaii- Hawaii v. Mankichi, 190 U.S. 197, 209-211, 23 S.Ct. 787, 47 L.Ed. 1016 (1903) (describing annexation of Hawaii by joint resolution of Congress and the maintenance of a “Republic of Hawaii” until formal incorporation by Congress); Northern Mariana Islands-note following 48 U.S.C. § 1801 (“in accordance with the [United Nations] trusteeship agreement ... [establishing] a self-governing commonwealth ... in political union with and under the sovereignty of the United States”); the Philippines-22 U.S.C. § 1394 (congressional authorization for the President to “withdraw and surrender all right of ... sovereignty” and to “recognize the independence of the Philippine Islands as a separate and self-governing nation”); Presidential Proclamation No. 2695, 60 Stat. 1352 (so proclaiming); Puerto Rico-Act of July 3, 1950, 64 Stat. 319 (“[T]his Act is now adopted in the nature of a compact so that people of Puerto Rico may organize a government pursuant to a constitution of their own adoption”); P.R. Const., Art. I, § 1 (“Estado Libre Asociado de Puerto Rico”); see also Cordova & Simonpietri Ins. Agency Inc. v. Chase Manhattan Bank N. A., 649 F.2d 36, 39-41 (C.A.1 1981) (describing various adjustments to Puerto Rican autonomy through congressional legislation since 1898).

It would seem to be impossible to argue, therefore, that Congress lacks the power to adjust the relationship between the United States and the Native Hawaiians. As Professor McGregor has explained, this relationship has been long established, and it has been adjusted numerous times during the past century. If further support were needed to establish the appropriateness and legitimacy of the Akaka Bill, one can turn to international law, where one would find substantial support for the proposition that native people (sometimes called indigenous people or aboriginal people) have the right to a separate and distinct status.

The 1989 Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No. 169) provides details regarding these rights. Although this treaty has not been ratified by large numbers of countries, it has been ratified by a large percentage of those countries that have important indigenous groups within their borders, and it has been seen by some commentators as codifying customary international law on this topic. ECOSOC Res. 2000/22 established the Permanent Forum on Indigenous Issues to provide recommendations and advice and coordination of UN activities designed to promote the human rights of individuals belonging to indigenous groups.

And on September 14, 2007, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples, which says (in Article 4) that “[i]ndigenous peoples…have the right to autonomy or self-government in matters relating to their internal and local affairs” and (in Article 5) that “[i]ndigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions.” So, there can be no question that native or indigenous peoples have a different status and are governed by a different set of principles under both US and international law than are other ethnic groups.

Tejanos (defined by Wikipedia as persons "of Hispanic descent born and living in the U.S. state of Texas") and Cajuns (defined by Wikipedia as members of "an ethnic group mainly living in Louisiana, consisting of the descendants of Acadian exiles and peoples of other ethnicities with whom the Acadians eventually intermarried on the semitropical frontier") certainly have some rights, but they are not native or indigenous people and are not covered by the US and international law principles that recognize the separate status and rights of native and indigenous people.

Gail Heriot: Among the things that may not have been adequately covered yet are these:

On whether 19th century ethnic Hawaiians were treated badly by whites (most of whom, by the way, were Hawaiian subjects, not American citizens): I’m sure it’s to some degree true. But if the Constitution means anything, it means that we don’t keep score by race. If long-dead members of one racial group got mistreated by long-dead members of another, that does not permit the federal government to racially discriminate among the living. The irony is that, in this case, the folks who claim to be descended from the victims are often also descended from the wrongdoers. According to statistics posted by the Office of Hawaiian Affairs (which administers the special benefits programs in Hawaii), only about 3.95% of ethnic Hawaiians have what the OHA not-so-delicately calls a "blood quantum" that is "100% Hawaiian." Only 34.88% have a "50% to 99% Hawaiian" "blood quantum." And 61.17% have a "blood quantum" of less than 50%." These figures were obtained in 1984, and you can bet that intermarriage has continued. (Love transcends even the silliest of politics.) My suspicion is that the descendants of 19th white settlers are more likely to be of mixed race than the descendants of whites who came relatively recently, simply because there has been more opportunity over the generations. Isn't it funny that we’re thinking of making things right by conferring special benefits on the descendants of the wrongdoers at the expense of folks who had nothing to do with the wrong?

On whether the U.S. government (as opposed to white Hawaiians) was implicated in the overthrow of Queen Liliuokalani: For the record, I want to point out that this is disputed. As Senators Slade Gorton and Hank Brown stated in their WSJ op-ed last year: “[The Apology Resolution] falsely claimed that the U.S. participated in the wrongful overthrow of Queen Liliuokalani .... The U.S. remained strictly neutral. It provided neither arms, nor economic assistance, nor diplomatic support to a band of Hawaiian insurgents, who prevailed without firing a single shot, largely because neither the Native Hawaiian numerical majority nor the queen's own government resisted the end of the Hawaiian Kingdom. The queen authored her own ouster by planning a coup against the Hawaii Constitution to recapture monarchical powers that had been lost in a strong democratic current. She later confided to Sen. George Hoar that annexation ... was the best thing that could have happened to Native Hawaiians.”

On whether the Apology Resolution justifies all this: Gorton & Brown had an interesting perspective: “We specifically inquired of its proponents whether the apology would be employed to seek "special status under which persons of Native Hawaiian descent will be given rights or privileges ... that are unavailable to other citizens of Hawaii." We were promised on the floor of the Senate by Daniel Inouye, ... a personage of impeccable integrity, that "as to the matter of the status of Native Hawaiians . . . this resolution has nothing to do with that. . . . I can assure my colleague of that." The Akaka Bill repudiates that promise ....”

Roger Clegg: Actually, there's at least one more area that is worth bringing up, and that's the politics of all this. I suspect it isn't average ethnic Hawaiians who are clamoring for the Akaka bill so much as it is ethnic Hawaiians who believe that they will occupy leadership positions in the new "tribe." So why should Congress set this kind of precedent if it is likely to be politically unpopular even in Hawaii? Here's the evidence: The only really large poll I know of taken in Hawaii on the issue was commissioned by the Grassroot Institute (which in fairness I should point out opposes the bill). And it was indeed massive--with 39,000 participants. (A later poll with consistent results was taken the following year, but I am uncertain of details of the second Grassroot Institute poll.) The results of the first poll appear to show that Hawaiians oppose the Akaka bill by a stunning ratio of 2 to 1 (56.8%/28.2%) when asked the following question: "The Akaka Bill question, now pending in Congress, would allow Native Hawaiians to create their own government not subject to all the same laws, regulations and taxes that apply to other citizens of Hawaii. Do you want Congress to approve the Akaka Bill?"

Even ethnic Hawaiians were against the bill. Forty-eight percent (48%) opposed it to only forty-three percent (43%) in favor. When this poll first came out, many argued that other polls contradicted the result. But only one such poll was being cited, and it was an unreliable one. In 2003, the very pro-Akaka bill Office of Hawaiian Affairs had commissioned a poll in which ethnic Hawaiians were asked: "Do you think that Hawaiians should be recognized by the U.S. as a distinct group, similar to the special recognition given to Native Americans and Alaska Natives?" Well, as Ms. Heriot pointed once out to me, who wouldn't want to be "recognized"? It's like asking someone if he'd like to be respected. Not surprisingly, eight-six percent (86%) of the 303 ethnic Hawaiians polls and seventy-eight percent (78%) of the 301 "non-Hawaiians" said "yes." But what are they saying "yes" to? Not the Akaka bill. I don't think either poll is perfect. But the Grassroot Institute's question comes a lot closer to presenting the issue fairly and accurately than the OHA question does.

Jon M. Van Dyke: The diverse people of Hawaii have always support the Native Hawaiians with regard to their claims. See, e.g., the recent story in the September 5, 2007 Honolulu Advertiser: "Most back Akaka bill: OHA poll": "A significant majority of Hawai'i residents support federal recognition and the Akaka bill, according to a poll released yesterday by Ward Research Inc. that was paid for by the state Office of Hawaiian Affairs. Those polled expressed broad support for giving Hawaiians federal recognition similar to what's granted to American Indians and Alaska Natives, the right of Hawaiians to govern themselves, the continuation of federally funded Hawaiian programs and protecting institutions such as Kamehameha Schools, the Department of Hawaiian Home Lands and OHA."

The details of how to provide redress for the grievances of the Native Hawaiians do tend to produce divisions, and the Akaka Bill is a carefully-crafted compromise designed to provide a framework within which Native Hawaiians can come together to develop a governing entity that will then be able to negotiate a fair settlement. That process may be difficult, but it is time to begin.

The contention that the United States remained "strictly neutral" and "provided neither arms, nor economic assistance, nor diplomatic support" to those who sought to overthrow the Kingdom of Hawaii is simply contrary to the historical record. There are many good books documenting this matter. One of the best is Tom Coffman, Nathan Within: The Story of American's Annexation of the Nation of Hawai`i (1998). In Rice v. Cayetano, 528 U.S. 495, 504 (2000), the Supreme Court's majority opinion explained simply and without qualification that "A so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with United States Armed Forces, replaced, the monarchy with a provisional government." "[A]ctive assistance," "acting with United States Armed Forces." It would appear that the US Supreme Court concluded that the United States had provided "arms" and "diplomatic support" to facilitate the overthrow. These were hardly acts of neutrality.

Nor was the Queen struggling against "a strong democratic current." She was trying to roll back the 1887 Bayonet Constitution which had been enforced upon the Kingdom. This 1887 Constitution had introduced property/income requirements much higher than those utilized in the 1864 Constitution, which had the effect of converting the House of Nobles "to the legislative voice of the haoles [foreigners]." Lawrence H. Fuchs, Hawaii Pono: A Social History 29 (1961). That document was "a clever device for securing to the [foreigners] the control of the Kingdom." William A. Russ, The Hawaiian Revolution: 1893-94, at 20 (1959). The 1887 Constitution completely prohibited Asian immigrants brought in to work in the plantations from voting, but allowed those from Portugal to vote in an effort "to balance [i.e., dilute] the native vote." Statement of Chief Justice Albert Francis Judd, reported in Letter from Commissioner James Blount to US Secretary of State W.C. Gresham, June 1, 1893.

Finally, with regard to Senator Inouye's statement, his statement that the Apology Resolution was not designed to change the "status of Native Hawaiians" was based on his understanding that the status of Native Hawaiians as a native people with a special political relationship with the United States had been established years previously, in the Hawaiian Homes Commission Act of 1920 and the 1959 Admission Act, along with many other statutes recognizing that status. See the Amicus Curiae Brief filed by the Hawaii Congressional Delegation in Rice v. Cayetano. But despite this early recognition of the status of the Native Hawaiian people, they remain the one significant group of natives in the United States that have never had an opportunity to pursue their claims through a federal claims commission and have never had any settlement package established for their benefit. The settlement of the claims of the Native Hawaiians is now long overdue. The passage of the Akaka Bill will give renewed impetus to the process of reconciliation promised in the 1993 Apology Resolution, and it is high time to make progress on that commitment.

Davianna McGregor: Neither the Akaka Bill nor the Apology Law lay blame upon individuals for the historical injustices perpetrated against the Native Hawaiian people and our government. Nor is the responsibility for reconciliation placed upon individuals. Any reconciliation and repatriation of lands and resources to the Native Hawaiian people will be of government lands and resources - lands that were originally controlled by the Kingdom of Hawai'I and the Native Hawaiian monarchy.

In 1900 when Hawai'i was declared an organized territory of the United States, Native Hawaiians comprised 24.4 % of the population (29,787 pure Hawaiians and 7,848 part Hawaiians), while Caucasians comprised only 6.9% of the population (10,577) and Portuguese, who were considered a distinct ethnic group, made up 10.2% (15,675). Asians comprised 56.4% of the population ( 25,762 Chinese/61,115 Japanese).

Of singular importance to the perpetuation of the Native Hawaiian people are isolated and undeveloped rural communities which were historically bypassed by the mainstream of social and economic development. Native Hawaiians in these rural areas did not fully assimilate into the changing social system. Instead, they pursued traditional subsistence livelihoods in which they applied cultural customs beliefs, and practices. They also sustained extended family networks through sharing and exchange of
food, work, and services. See McGregor, Davianna. 2007. Na Kua'aina: Living Hawaiian Culture.

Beginning in the 1970’s Native Hawaiians engaged in a cultural renaissance which reaffirmed the consciousness, pride in, and practice of Native Hawaiian cultural and spiritual customs and beliefs. In rallying around protection of the island of Kaho'olawe from bombing by the U.S. military, the traditional practice of aloha 'aina gained prominence and the importance of these rural Hawaiian communities as strongholds of traditional Native Hawaiian subsistence lifestyles was recognized.

Traditional navigational arts and skills were revived with the transpacific voyages of the Polynesian Voyaging Society on the Hokule'a, the Hawai'i Loa, and the Makali'i. Halau hula, the schools which teach traditional Hawaiian dance and chant, increased and flourished. La'au Lapa'u, traditional herbal and spiritual healing practices were recognized as valid holistic medicinal practices. Hawaiian Studies from the elementary to university level was established as part of the regular curricula. Hawaiian music evolved into new forms of expression and gained greater popularity.

Perhaps the most remarkable development was the rejuvenation of the Hawaiian language. In 1987 there were only 2,000 native speakers of Hawaiian, most in their 60's and 70's. Only 30 were under 5 years old. In the 1999-2000 school year 1750 students were enrolled in 18 Hawaiian language immersion public schools.

All of these efforts, combined, reaffirmed the continuity and perpetuation of Native Hawaiians as unique and distinct with our own cultural and spiritual beliefs, customs, practices; language and ancestral national lands.

The Akaka Bill is designed to reaffirm and protect distinct Native Hawaiian cultural practices, customs and language, as a people and a nation.

Gail Heriot: The argument for the Akaka bill comes down to this: Our group is special. Organizing a Hawaiian tribal group and creating a tribal government for it will not set a precedent, because everybody knows we’re different ... or so the argument runs. But every group in creation thinks it’s unique, and they’re always both a bit right and a bit wrong about that. Either way, if the Akaka bill is passed, you can bet the precedent will be used by other groups. And yes, among them will likely be the Aztlan Movement, which claims that Southern California is rightfully a Chicano homeland and part of Mexico. (Sure, they’re kooks, but there are a lot of them. Even former Lt. Gov. Cruz Bustamante was once among them. Twenty years ago, people thought advocates of Hawaiian sovereignty were kooks too.) Affirmative action preferences were once for African Americans only and are now widely available. Indeed, the Department of Transportation’s eligibility list is truly astonishing. The same sort of thing is likely to happen with the Akaka bill. And no amount of argument that I have “trivialized” the issue “with superficial comparisons” will change that. All of this is precisely why our law does not recognize debtor and creditor races. Regardless of how ethnic Hawaiians were treated in the 19th century, Hawaiians freely joined the union in 1959–with overwhelming support from all groups.

I note that Mr. Van Dyke states that the new governing entity’s job will be to “negotiate a fair settlement.” It’s hard to imagine that other groups that feel they have grievances won’t also want a deal. And there are constitutional issues beyond the equal protection issue discussed at greater length earlier. The Constitution doesn’t empower the federal government to create tribes. It can only recognize tribes that are already functioning, much the way it recognizes foreign governments. Advocates argue that ethnic Hawaiians already exist as a sovereign group, but if they did, they wouldn’t need the Akaka bill. You don’t hear France complaining that Congress hasn’t passed a law that will help them identify who’s French and organize their elections. Ethnic Hawaiians exist in the same way that Italian Americans and African Americans exist as a group. They’re not a tribe. Finally, the poll that Mr. Van Dyke refers to highlights rather than contradicts Mr. Clegg’s statement about the unpopularity of the Akaka bill in Hawaii. Everybody wants to be “recognized.” But when voters are told about what the bill really does, support drops away even though the OHA tried not to ask questions that would elicit a negative response. Only 51% (plus or minus 5%!) favored the creation of a governing entity. (The OHA press release doesn’t say how this question was phrased.) Imagine the response if they had been told the governing entity could create its own criminal code and other laws applicable to its members.

There is a reason the Akaka bill’s supporters oppose a plebiscite on this matter. They’ll likely lose.

Davianna McGregor: This issue is not simply that Native Hawaiians are a unique and distinct indigenous people, but that we are an indigenous people with whom the U.S. Congress established a trust relationship throughout the 20th century.

Raising the specter of the Akaka Bill setting an unwanted precedent for potentially unqualified ethnic groups cannot erase the precedents that the U.S. Congress has already set.

As previously noted, this includes the passage of the Hawaiian Homes Commission Act in 1921, the Kalapana Extension Act of 1938, The Admission Act of 1959 and the Apology Law of 1993, as well as up to 200 other pieces of legislation.

Evoking the U.S. Supreme Court ruling in Rice v. Cayetano does not, in fact, definitively rule out these precedents. The court raised questions regarding the application of the 14h Amendment to the status of Native Hawaiians, but went on to cite contradictory treatises on this issue and resolved not to rule on the matter. This leaves the path open for the U.S. Congress to reaffirm its 100 year old policy of a trust relationship with Native Hawaiians through the Akaka Bill.

Opponents seek to derail the Akaka Bill with claims that the Native Hawaiian people are an ethnic group like Italian Americans or a racial group like African Americans. The U.S. Congress has recognized that Native Hawaiian people are a sovereign indigenous people, not an ethnic group or a racial group. Similar to the, Alaska Native Claims Settlement Act, the Akaka Bill will reaffirm the recognition of Native Hawaiians as people who have exercised inherent sovereignty over the Hawaiian Islands and provide a process of reconciliation in accordance with Public Law 103-150 the Apology Law.